Thursday, January 31, 2008

Family lawyers v. psychologists, Round 2

One of last year’s fiercest lobbying battles in the General Assembly has been one-sided so far this time around.

Domestic relations attorneys, with the support of the Virginia Bar Association and the Virginia Trial Lawyers Association, are determined to get Virginia Code § 20-124.3:1 repealed.

The provision bars use of the records or testimony of a mental health therapist against a parent in a custody dispute. It was enacted in 2002 at the behest of clinical psychologists, who contended that their patients were likely to be less candid when getting treatment if they knew that what they said might cost them custody of their children.

The domestic relations bar countered that other provisions in state law list the mental health of a parent as one of the factors a judge must consider in deciding custody. It makes no sense for another law to make the best information about a parent’s health inadmissible, the attorneys insist. And they say there’s no evidence real evidence that parents avoid therapy because of custody battles.

Last year, groups of lawyers were balanced by blocs of psychologists at hearings on the repeal effort. This year, the lawyers have been back, but the psychologists have not. A spokesman for them acknowledged that the law needs changing but asked for another year to work out a compromise. The lawyers countered that two years of effort in that direction have produced nothing.

So far, the intensity of their effort has prevailed. The Senate Courts of Justice Committee reported SB 330 yesterday to the full Senate on a 13-1 vote.

What would JIRC have done?

This is a case from Maryland. But in light of the recent de-benching of a Southwest Virginia judge by the Supreme Court on a complaint brought by the Judicial Inquiry and Review Commission, one can’t help but wonder what would have been the result here in the Old Dominion.

In November, Scott County J&DR Judge James Michael Shull was removed from the bench for, among other offenses, treating litigants with a lack of respect.

Here’s a case about how a judge treated three lawyers. The full account is available in the Maryland Register, but here’s the short version. The Associated Press, through MSNBC, also has a very quick item online.

Last year in Hagerstown, Washington County Circuit Judge W. Kennedy Boone III heard a criminal case. During the hearing, he referred to three African-American public defenders as “the Supremes,” and he stated that the PD’s office should send “an experienced male attorney” to handle the case.

After he was brought up on ethics charges, the judge told the Maryland Commission on Judicial Disabilities that by making this last statement, he sought to protect the three women from “representing a very difficult, streetwise, and manipulative defendant.”

He said he has personally apologized to all three lawyers, offering to recuse himself from their cases, an offer they have not taken. He also accepted responsibility for his action, saying he violated the Canons of Judicial Ethics and should be sanctioned appropriately.

The Maryland commission found the comments to be “undignified and disparaging” and therefore sanctionable. The commission issued a private reprimand to Boone.

But the commission noted that “because Judge Boone's comments took place on the record, in a public courtroom, they represent a serious lapse in judgment on the part of Judge Boone which warrants this Private Reprimand being made public, as the appropriate sanction.”

“The Commission further intends for this Private Reprimand to serve as a warning that any further such comments or conduct by Judge Boone may result in Charges and possible further discipline,” it concluded.

Boone, 65, has been a judge in Washington County since 1997. He remains on the bench.

Tuesday, January 29, 2008

Retirement age for judges may increase

The Virginia Judicial Council has recommended raising the mandatory retirement age for judges from 70 to 75. That’s fine with the Senate Courts of Justice Committee, which reported SB 19 on a 10-4 vote last week and referred it to the Finance Committee.

Yesterday, in HB 783 the House Courts of Justice Committee voted to raise the age to 73 on a 15-7 vote.

Anybody for 74?

Monday, January 28, 2008

Status of bills corrected

We were a little off last week in describing the status of essentially identical bills in the House and Senate that would make it faster to terminate parental rights and get children adopted and out of foster care.

We correctly reported that House Bill 750 went down on an 11-10 vote in the House Courts of Justice Committee on Jan. 21. But on Thursday, Del. Kenneth R. Melvin, D-Portsmouth, asked his colleagues to reconsider the bill and it is now back on the committee’s docket.

Under House rules, Melvin’s request was granted because he voted against the bill. He said originally that he was concerned that the action would put the legislature on a slippery slope toward the repeal of routine de novo review of district court rulings.
But he said he had come to believe the issue deserves further consideration.

We reported incorrectly that the civil subcommittee of Senate Courts of Justice had referred Senate Bill 394 to the full committee. We confused the committee’s action with its endorsement of another bill. It’s still before the subcommittee.

Friday, January 25, 2008

No claim for e-mail firing

A tourism PR director who says he was fired for sending e-mails to various state officials cannot sue those officials for his termination, the 4th U.S. Circuit Court of Appeals said yesterday in ruling on the director’s civil rights suit.

Public relations director L. Meriwether German worked for the Shenandoah Valley Travel Association, a private non-profit that promotes tourism in the Valley. When members of the association complained to German about the temporary relocation of an Interstate 81 welcome center, German fired off a series of e-mails with the SVTA signature block to a Virginia state senator, a VDOT employee and to Alisa Bailey, president of the Virginia Tourism Corporation, a state agency.

In his suit under 42 U.S.C. § 1983, German alleged that state employee Bailey, who was unhappy with the e-mails, coerced private actors into firing him. She allegedly told German’s boss to get him to “back off.”

Private action sometimes can be attributed to the state, the 4th Circuit said in its unpublished per curiam opinion in German v. Fox. But even when a private entity is heavily regulated by or receives funding from the state, that relationship doesn’t necessarily translate into state action.

German could not show that Bailey, despite her alleged close connection with his superiors, ordered that German be fired, or that she wanted or expected him to be fired, the 4th Circuit said. It upheld U.S. District Judge Glen Conrad’s dismissal of the suit.

One costly bowl of chili

A Roanoke general district judge has given 30 days in jail to a guy accused of ordering, then not paying for, a bowl of chili at the Texas Tavern.

The Texas Tavern is the only 24-hour restaurant in downtown Roanoke.

The tab for the chili was $1.66. The accused man, Charles B. Ogle, testified that he left $2 on the counter before leaving. A surveillance video shows Ogle angrily arguing with a Tavern employee after the incident.

But Judge Skip Burkart said the video could be of a guy wrongly accused or a guy upset that he got caught. Burkart gave Ogle 30 days, 26 suspended, on a misdemeanor charge of defrauding the restaurant.

The Roanoke Times reports that Ogle has appealed his conviction to circuit court. Stay tuned.

House, Senate split on termination of parental rights

Faster termination of parental rights is seen as a way to get children out of foster care and adopted more quickly.

The proposal in House Bill 750 and Senate Bill 394 is for terminations to be appealed directly from juvenile and domestic relations district courts to the Virginia Court of Appeals. Parents now have a right to a de novo appeal in circuit court.

HB 750 went down Monday in House Courts of Justice on an 11-10 vote. The stated concerns were that the proposal seemed to be a piecemeal move toward a family court and the start of a slippery slope toward the abolition of de novo appeals.

There were no such concerns in civil subcommittee of Senate Courts of Justice yesterday. SB 394 passed on a 7-0 vote with little discussion and is now before the full committee.

The bills are part of the “For Keeps” foster care initiative led by First Lady Anne Holton, a former juvenile and domestic relations district judge in Richmond.

Thursday, January 24, 2008

Survey tracks views on courts

Virginians don’t trust our court system as much as they trust medical professionals. But they still trust the courts more than “the media.”

These are some of the findings of a telephone survey of 1,100 randomly selected Virginia residents released last week by the Supreme Court of Virginia.

Of those called, 600 had no prior experience with the court system, and 500 had experience within the past five years. About one-quarter of the “experienced” respondents interacted only with the clerk’s office. Their primary complaint? There should be more parking.

With or without direct experience, two-thirds of survey respondents are confident that people are treated fairly in Virginia courts.

However, the survey also reports mixed responses on how different groups are treated, with some perceived distinctions in treatment based on whether people are wealthy, white, or English-speaking. Responses on race indicated that 78 percent of the respondents were white, 13 percent African-American

Although responses didn’t show a perception that men fare better than women in Virginia courts, men are more likely than women to trust the courts “a lot.”

The survey was conducted in October 2007 and the full survey report will be available later this year.

Judges face reappointment questions

Two judges who were appointed when Republicans controlled the General Assembly appear to face an uphill battle for second terms.

Legislators insist, however, that performance, not politics, is the issue. Democrats took control of the Senate in the November election. Republican still have a majority in the House.

Norfolk Circuit Judge Charles D. Griffith Jr. has to contend with the sharp criticism the Supreme Court of Virginia delivered in Wilson v. Commonwealth in reversing a drug conviction.

The court said Griffith’s response to what he viewed as judge-shopping by defense attorney Allan D. Zaleski “raised concerns about the judge’s impartiality in the case and about the public’s perception of fairness in the case.” Some criminal defense attorneys believe that Griffith, who was the city commonwealth’s attorney when he was appointed to the bench, remains too prosecution-oriented.

Sen. Phillip P. Puckett, D-Tazewell, said he is not supporting the reappointment of Juvenile and Domestic Relations District Judge John M. Farmer because he has received numerous complaints about him in the six years he has been on the bench. Farmer is based in Clintwood and sits in the district that includes Dickenson, Russell, Buchanan and Tazewell counties.

Saturday, January 19, 2008

4th Circuit nominee bows out

Richmond lawyer E. Duncan Getchell Jr. has acknowledged the obvious and asked President George W. Bush to withdraw his nomination to the 4th U.S. Circuit Court of Appeals.

Bush nominated Getchell in September to fill the vacancy created by the death of Judge H. Emory Widener Jr., but he was not among candidates recommended jointly for the seat by the state’s two senators, Republican John Warner and Democrat Jim Webb.

Webb immediately said he would not support Getchell, and it was clear that he would not get a hearing before the Senate Judiciary Committee because Democrats have a majority in the Senate.

Getchell sent the White House a letter Thursday asking that the President pull his name.

The Richmond Times-Dispatch has the details.

Thursday, January 17, 2008

Repeal of civil remedial fees advances

So much for bipartisanship.

All members of the Senate Courts of Justice Committee appeared to agree yesterday about the best response to the state’s much-maligned civil remedial fees: repeal them as soon as possible and make refunds to those who have paid them already.

Somehow, however, the committee split along partisan lines, 8-7, on several votes merely to repeal them with no emergency provision or mention of refunds.

Democrats saw that as the best way to get repeal and emergency action through the House of Delegates, which has several bills pending that would tweak the fees rather than repealing them outright. The House requires an 80 percent vote to make legislation effective on the governor’s signature, and several senators said they think that is unlikely.

On the other hand, several legislators noted, Gov. Timothy M. Kaine could sign the repeal as emergency legislation on his own hook, and it would take only a simple majority vote in each house to sustain the governor’s action.

That was way too clever for Virginia Beach Sen. Kenneth W. Stolle and his Republican colleagues. They wanted the measure to include an emergency provision and refunds. “We’re letting politics cloud our judgment,” Stolle said. “The right thing to do, and everybody at the table knows this, is to repeal this thing as quickly as we can.’ ”

Six bills that would repeal the fees were rolled into a bill sponsored by R. Edward Houck, D-Spotsylvania and eventually referred the Senate Finance Committee on a majority vote with no emergency or refund provisions.

Sen. Richard L. Saslaw, D-Fairfax, said $13 million in fees had been assessed and $4.8 million had been collected by Dec. 31. Those numbers suggest that the fees would generate far less than the $65 million that were projected for the transportation program enacted last year.

Tuesday, January 15, 2008

Animals may fare well in '08 Assembly

Animal rights activists have tried for years to get Virginia's laws on animal fighting changed to protect the four-legged of the world, with little to show for it. After the embarassment of the Michael Vick dogfighting case here in the Old Dominion, legislators apparently now are listening.

The Washington Post reports the 2008 session has been flooded with pro-animal bills.

And continuing the animal law news roundup, cats may be able to claim some degree of parity with dogs, if House Bill 334 becomes law.

Proposed by Del. Jennifer McClellan, D-Richmond, the measure would make it a class 5 felony to steal a cat. It's already a felony to steal a dog. Dogs apparently have had better lobbyists in years past. The Virginian-Pilot has details.

Monday, January 14, 2008

Officer Scalia?

Our DC-based colleague over at Lawyers USA, Kim Atkins, was down at the U.S. Supreme Court today, listening to argument in a case from Portsmouth, Virginia v. Moore.

It's a search case that has already been through the Supreme Court of Virginia, where the defendant prevailed.

But 18 attorneys general from other states have backed the Virginia authorities in the case, even if the ABA and the NACDL are supporting Mr. Moore.

Justice Antonin Scalia, in a line of questions for Stephen McCullough, the deputy solicitor general appearing on behalf of the commonwealth, played "what if." He asked what if he had a neighbor near his home in McLean who was growing dope and what if he conducted a search on behalf of the commonwealth.

Check out the DC Dicta post to see just how far Scalia took this one.

Former Lynchburg mayor’s appeals dropped

The federal criminal case of former Lynchburg Mayor Carl R. Hutcherson Jr. is over.

Hutcherson was convicted last year of fraud and other counts but appealed those convictions to the 4th U.S. Circuit Court of Appeals. The government also appealed, contending that the sentence imposed by U.S. District Judge James C. Turk was unreasonable.

Federal sentencing guidelines recommended a minimum sentence of 36 months in prison, but Turk instead sentenced Hutcherson to probation and 200 hours of community service and ordered him to pay about $15,000 in fines and restitution.

Turk cited Hutcherson’s poor health, his history of honorable public service and his model behavior while awaiting trial and sentencing as reasons to depart from the guidelines.

The sentence became much more reasonable last month, when the U.S. Supreme Court decided Gall v. U.S. The decision gave trial judges much more leeway in imposing sentences and said those sentences must be interpreted by appellate courts under an abuse of discretion standard.

Gall involved a defendant in an ecstasy distribution conspiracy who also had received probation when the guidelines called for at least 36 months in prison. He acknowledged netting $30,000 from it, but he voluntarily withdrew from the conspiracy several years before he was charged and had graduated from college and started his own business in the interim.

In a statement today, Hutcherson’s attorneys, John P. Fishwick Jr. and John E. Lichtenstein of Roanoke, said the 4th Circuit has entered an order dismissing the appeals of both Hutcherson and the government. “We always believed that the Court’s sentence accurately and appropriately reflected Carl’s lifetime of service to the City of Lynchburg and to so many of its citizens,” the lawyers said.

McDonnell seeks to intervene in Episcopal case

Attorney General Bob McDonnell has filed papers for the state to intervene in the Episcopal Church case in Northern Virginia.

The case, tried last fall, pits the diocese against 11 congregations that want to break away; millions of dollars in church property hangs in the balance. McDonnell said that since the constitutionality of a state statute was challenged in the case, the commonwealth needs to be a party.

The Washington Post has details.

Friday, January 11, 2008

Interest and amended complaints

You probably don’t have this much interest in interest.

The Supreme Court of Virginia takes 49 pages, including a five-page concurrence, to untangle the mess created by two jury trials, two earlier appeals, the specification by a jury of an interest rate higher than the one the trial court allowed, and the possible accrual of post-judgment interest on pre-judgment interest.

The bad news is that wading through Upper Occoquan Sewage Authority v. Blake Construction Co. may well become the first step toward resolving any dispute in which interest is an issue.

If the case doesn’t satisfy your civil procedure jones, try Ahari v. Morrison, in which plaintiff filed an amended complaint and a motion to for leave to amend three days before the statute of limitations expired. The trial judge took two months to act on the papers. The defendants contended that the amended complaint was filed outside the statute because the date of filing is the date the court acts on the motion, not the date it is filed with the clerk.

Because Rule 1:8 requires leave of court to amend any pleading after it is filed, the defendants are correct, the court ruled.

Medical malpractice cases revived

No expert testimony is needed to establish that a dialysis center was negligent in placing a patient in a chair that collapsed—twice, the Supreme Court of Virginia ruled today.

“The issue of the defendant’s acts of medical negligence regarding the defective chair is quite simple and within the common knowledge of a lay jury,” the court held.

The case of Coston v. Bio-Medical Applications of Virginia Inc. was one of two medical malpractice cases the court reinstated.

In the second, Lloyd v. Kime MD, the court held that a neurologist who no longer performs surgery or has an active clinical practice nevertheless could testify about postoperative treatment by an orthopedist of a man who underwent a cervical diskectomy. The neurologist also could testify about the proximate cause of the plaintiff’s injuries, but he could not testify about the standard of care during the operation itself, the court held.

A Scarlet, or Yellow, Letter for drunken drivers?

A new specialized license plate could be coming soon to Virginia.

Its focus group? Drunken drivers.

A newly proposed law would order Virginia drivers with three or more DUI convictions to sport bright yellow license plates with red characters – a “Scarlet Letter” of sorts for repeat offenders.

The bill, sponsored by Del. Lionel Spruill Sr., D-Chesapeake, would require offenders to purchase the plate for $500 and keep it on their vehicles for five years after retaining their driver’s licenses. According to the DMV, three drunken driving convictions in 10 years results in indefinite license revocation. Third-time offenders also face over $1000 in fines and mandatory jail time.

In an article from The Virginian-Pilot, opponents of the bill call the proposed law a violation of civil liberties, and claim that similar laws passed in other states failed to curb instances of drunken driving.

Others argue that the proposed law is too lenient, preferring harsher punishments such as specialized plates after a first DUI offense and vehicle repossession for second and third convictions.

Spruill stands by the measure, likening it to the public database that identifies repeat child molesters. He says the plates would warn other drivers of a potential danger on the road.

But critics – and drunks – should probably rest easy. A similar bill, proposed by Spruill last year, never made it past committee.

Supreme Court decides criminal cases

A Department of Motor Vehicles record that a defendant was notified of his habitual offender status by law enforcement did not establish that he received actual notice of his determination as an habitual offender, the Supreme Court of Virginia ruled today.

The DMV record entry, “Notified: 2001/03/10 by law enforcement,” “does not specify the content of any notification that may have been provided to [the defendant], and this entry does not identify the person, agency, or entity that constituted law enforcement,’ ” the court said.

Despite the reversal in Bishop v. Commonwealth, it was a good day for the Virginia Court of Appeals and the attorney general’s office. The high court upheld convictions in six other cases and reversed a grant of a new trial by a Norfolk Circuit judge granted in a widely publicized murder case. That contrasts with recent Supreme Court opinion days in which most decisions were in favor of criminal defendants.

In Wright v. Commonwealth, the court said a trial judge can impose additional terms of suspended incarceration and post-release supervision after accepting a plea agreement under Rule 3A:8(c)(1)(C).

In Malbrough v. Commonwealth, the court held that the trial judge properly ruled that a defendant consented to a search of his person after he was told that he was free to leave at the end of a traffic stop.

In Phelps v. Commonwealth, the court said the person endangered under a charge of felony eluding and endangerment under Code § 46.2-817(B) can be the defendant himself.

In Parker v. Commonwealth, the court affirmed a conviction for larceny under false pretenses of a man who sold fake ecstasy pills to an undercover police office.

In Glenn v. Commonwealth, the court agreed that a grandfather had the authority to allow the search of a backpack in the room of the house the grandson occupied.

In Bolden v. Commonwealth, the court upheld the conviction of constructive possession of a firearm that was found in a plastic bag in the seat that had been occupied by the driver of a vehicle. The trial judge also could infer that the presence of drugs in the car supported the finding that the defendant had dominion and control over the gun, the court said.

In the habeas case, Johnson v. Tice, the court rejected the trial judge’s finding that counsel for Derek Elliott Tice had been ineffective in failing to file a motion to suppress his confession. Tice is one of four defendants who pleaded guilty to the murder of Michelle Moore-Bosko in 1997. Four former Virginia attorneys general have questioned the validity of the convictions, citing inconsistencies in the confessions and DNA evidence the implicates a fifth suspect not charged in Moore-Bosko’s death but convicted of another rape.

Robertson to buy The Virginian-Pilot?

Paybacks are, well, um, we won’t say what paybacks are.

But televangelist Pat Robertson, who has been unhappy with The Virginian-Pilot and its coverage of him and his activities, may buy the newspaper.

Norfolk-based Landmark Communications Inc. announced earlier this month that it will explore selling its assets, including The Pilot and The Weather Channel. Robertson said The Pilot would be useful in providing journalism internships for Regent University, the school he founded.

Who better to have the story than The Pilot itself?

AG backs fix for nonlawyer signatures on motions

The attorney general’s office is sponsoring a legislative fix to a problem that it doesn’t believe really exists.

The issue is the practice of having nonlawyers sign motions to hold in contempt parents who are delinquent in their support obligations.

Kimberly J. Daniel, a juvenile and domestic relations district judge in Fairfax County, ruled in October that Virginia Code § requires such pleadings to be signed by an attorney.

A logical extension of that ruling, and one pressed unsuccessfully in a federal lawsuit last year, is that thousands of such orders are unenforceable because they are void ab initio.

A more practical problem is that those nonlawyer employees could be guilty of practicing law without a license, said Craig M. Burshem, a senior assistant attorney general who represents the Department of Child Support Enforcement. That’s a risk he is unwilling to run, he said.

Although he said he disagrees with Daniel’s ruling, he has directed that an attorney sign all such motions.

As a permanent fix, the office has asked Del. Sal R. Iaquinto, R-Virginia Beach to introduce House Bill 1382, which would amend Virginia Code § to 16.1-260 and related statutes to make it clear that nonlawyers can file such motions.

Thursday, January 10, 2008

Wife's 95-percent ED award upheld

Divorce lawyers looking for a benchmark for monetary awards may want to check out a recent Court of Appeals case.

Lawyers know there is no rule requiring a 50-50 split of marital property. But arguments about who contributed what to a marriage often degenerate into “he said, she said” contests. Then something approaching an even split can seem like the most equitable outcome.

Then there are cases that skew the other way.

After Carey and Dean Roberts’ 24-year marriage ended, Accomack County Circuit Judge Glen Tyler awarded the wife 95 percent of the marital property. The Court of Appeals upheld that equitable distribution in an unpublished opinion released Dec. 27.

Tyler found the husband made only negative contributions to the marriage, especially during the last 10 years the parties lived together. The husband didn’t hold a job and didn’t help around the house. In fact, at times he endangered the financial stability of the family either by creating debt, depleting family resources or by creating situations that could have cost wife her job, according to the appellate panel opinion.

It was the wife who held things together.

Tyler said the case, Roberts v. Roberts, was “the most remarkable case” presented to him in “many, many years.”

Retired Judge Overton dies at 79

Judge Nelson T. Overton, who served on the Court of Appeals from 1995 to 1999, died at his home yesterday. He was 79.

The judge was a circuit judge in Hampton before he became the first judge from the Peninsula to serve on the intermediate court.

The Daily Press has details.

Wednesday, January 9, 2008

Supreme Court hears charitable immunity cases

Chief Justice Leroy Rountree Hassell Sr. noted that the University of Virginia Health Services Foundation pays annual bonuses ranging from $70,000 to more than $850,000 to physicians who work at U.Va. Hospital.

“To me, it raises a big eyebrow,” Hassell told Charlottesville lawyer Donald R. Morin, who was trying to convince the Supreme Court of Virginia that the foundation has charitable immunity.

Morin responded that those amounts must be considered in the context of the salaries necessary to attract the best talent to a world-class medical school.

Hassell countered with a chuckle, “I think I’m on a world-class court, too,” adding that he and his colleagues get no such bonus.

The court heard arguments today in two cases in which Charlottesville Circuit Judge Edward L. Hogshire found that the foundation does not have immunity and one from Fairfax Circuit Judge Randy I. Bellows, who sat in the Charlottesville court by designation and found that it does.

Morin fielded far more questions than the attorneys who argued for the plaintiffs, Matthew B. Murray, R. Frazier Solsberry and L. Steven Emmert.

Justice G. Steven Agee focused, for example, on how those bonuses are determined. He noted that they are based on the amount of income generated by the physicians and their departments rather than on the amount of charitable work that they do.

The justices did not seem to be impressed, however, by arguments that the foundation gets its status as a charitable institution for tax purposes from support of the university and its hospital rather than from its own independent status as a charity.

That election for tax purposes has little to say about whether it meets the criteria for charitable immunity that the court established in Ola v. YMCA of South Hampton Roads Inc. (VLW 005-6-098), Justice Donald W. Lemons said.

Tuesday, January 8, 2008

Supreme Court hears transportation authority arguments

Attorneys for opponents of regional transportation authorities told the Supreme Court of Virginia today that the General Assembly cannot delegate the power to impose taxes to non-elected bodies.

William G. Broaddus, responding for the Northern Virginia Transportation Authority, countered that no delegation is involved because the legislature specified the type of taxes and fees and their amount as a major part of a transportation bill adopted last year. Broaddus conceded, however, that the authority ultimately decides whether to impose those taxes and fees.

Arguing for the opponents, Wesley G. Russell Jr. emphasized that sanitary districts are the only non-elected bodies with taxing powers. That exception proves the rule because members of the sanitary district’s governing body must also be members of the local government, Russell said.

In their questioning, however, members of the court seemed to be concerned about a ruling that would affect the power of what Broaddus described as “literally hundreds of authorities,” such as industrial development and housing and redevelopment authorities, to finance projects through bonds and other means.

The court granted expedited review of the legality of the regional transportation plan and heard arguments barely six months after the legislation took effect and little more than four months after Arlington Circuit Judge Benjamin N.A. Kendrick rejected challenges to it. The court is expected to decide the case on March 2.

The cases are Marshall v. Northern Virginia Transportation Authority, Record No. 071959 and Loudoun County Board of Supervisors v. NVTA, 071979.

Friday, January 4, 2008

The latest on driver fees

Civil remedial fees, also known as "abusive driver" fees, were a big deal in 2007. Designed as a way to raise money for roads without raising taxes, the fee scheme assessed big bucks for certain driving offenses. But only against Virginia residents. Negotiated between the governor’s office and leaders in the General Assembly, the program passed without much fanfare last winter. But when the fees took effect in July, the public complained loudly.

The General Assembly will be back in Richmond starting next Wednesday, and driver fees are on the action-item list.

Lt. Gov. Bill Bolling yesterday called for a repeal of the fees.

And Del. Dave Albo, R-Fairfax, one of the architects of the original scheme, says that the problems can be fixed. He has introduced House Bill 161, which changes the terminology and tries to address the complaints.

Now the fees are called “liquidated damage fees” and they will hit everyone, including out-of-state offenders. The bill reduces the number of offenses to which the fees apply, dropping such charges as driving without a license and reckless driving.

The Daily Press has an interview with Albo and an analysis of the measure in this morning’s edition.

Thursday, January 3, 2008

Cop’s disclaimer counted out

How much does a cop’s disclaimer count when deciding whether a suspect is actually in custody?

Not much in a recent 4th Circuit case.

FBI agents, some 23 strong, burst into the Chesapeake home of Willoughby Warren Colonna IV, a/k/a "maryanna," in 2004 after detecting “preteen sex pics” on Colonna’s home computer. The agents awakened Colonna’s younger sister and his parents, who said he was asleep in the third-floor attic. The agents kicked open the bedroom door and ordered Colonna downstairs at gunpoint. Two agents took Colonna out to an FBI car and interviewed him for three hours, after which he signed a statement taking total responsibility for any material found on his computer.

But the agents told Colonna he was not under arrest, and in fact he was not arrested on child pornography charges until a year and 10 months after the search.

Based on the lack of Miranda warnings, the 4th Circuit reversed Colonna’s conviction.

Writing for the court in U.S. v. Colonna, Judge Roger Gregory said the trial court erred in finding there was no custodial interrogation because an FBI agent specifically told Colonna he was not under arrest and the interview did not end with his arrest.

There “is no precedent for the contention that a law enforcement officer simply stating to a suspect that he is ‘not under arrest’ is sufficient to end the inquiry” into custody, Gregory wrote.

A “reasonable man in Colonna’s position would have felt that his freedom was curtailed to a degree associated with formal arrest,” and “his statements should have been suppressed,” the 4th Circuit panel concluded.

Rule 5A:12 rears its head

Lawyers trying to get a decision on the merits in the Virginia Court of Appeals know they have to clear the hurdle of Rule 5A:18, which makes sure the trial court had a chance to consider any claim of error a party wants to pursue on appeal.

Appellate lawyers had better start paying closer attention to the procedural hurdle of Rule 5A:12(c), based on the court’s Dec. 27 decision on rehearing en banc in Moore v. Commonwealth.

Moore is the case in which a split panel decided last February that a Henrico County police officer’s vehicle stop, based on a “partially peeling” safety inspection sticker, violated the Fourth Amendment.

When the case came up for rehearing en banc, the court backed off from even hearing the case on the merits. Judge Elizabeth McClanahan, who dissented from the February panel decision, said that Rule 5A:12(c) barred merits review because the defendant framed the issue in his petition for appeal as whether there was “probable cause” for the stop, not whether there was “reasonable suspicion.”

Trouble is, the Rule 5A:12(c) issue only came up sua sponte after argument in the en banc rehearing.

Not everyone went along with McClanahan’s sua sponte reliance on the “questions presented” rule. Judge William Petty would have reached the merits under the court’s “inherent authority” to decide the issue argued, but affirmed the conviction.

Judges Larry Elder and Randolph Beales, and Chief Judge Walter Felton dissented, saying the question had been properly posed for appeal and the stop was illegal.

As the confused Emily Litella used to say on Saturday Night Live: "Never mind."

Wednesday, January 2, 2008

Message received

The 4th U.S. Circuit Court of Appeals affirmed last week a downward departure for a sentence that it likely would have found unreasonable before the U.S. Supreme Court’s rulings in Gall v. U.S. and Kimbrough v. U.S. on Dec. 10.

Larry Pauley was convicted of one count of possessing child pornography and acknowledged that his guidelines’ sentencing range was 78 to 97 months in prison.

However, U.S. District Judge John T. Copenhaver Jr. of Charleston, W.Va., sentenced him to only 42 months and the government appealed. Pauley, who had been an arts teacher in St. Albans, W.Va., admitted that he had paid a student for nude photographs of herself after the girl had offered to sell them to him. She was in the eighth and ninth grades when the photos were taken.

Copenhaver cited several factors in justifying the departure: the girl instigated the transactions, fewer than two dozen photos were taken with a Polaroid camera and the victim’s face did not appear in any of them, and Pauley was extremely remorseful and otherwise a model citizen who lost his teaching certificate and state pension as a result of the conviction. A search of his home disclosed no other child pornography.

Writing for the 4th Circuit panel in U.S. v. Pauley, Chief Judge Karen J. Williams said Gall and Kimbrough required affirmance of the sentence. “[C]onsidering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward departure was supported by justifications necessary to uphold the sentence,” she said.